Sexual Harassment in Education

New York

Sexual Harassment in Education

SEXUAL HARASSMENT IN EDUCATION

January 25, 2002

LINDA WONG

WONG FLEMING

A PROFESSIONAL CORPORATION

PRINCETON, NEW JERSEY

I. Applicable laws

The New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to –42 prohibits discrimination in places of public accommodation on the basis of race, creed, color, national origin, ancestry, nationality, sexual or affectional orientation, age, marital status, sex and handicap, Educational institutions, except for those which are operated or maintained by a bona fide religious or sectarian institution, are considered places of public accommodation. Harassment on the basis of such criteria is considered to be a form of discrimination.

Title IX of the Education Amendments of 1972 prohibits sex-based discrimination by educational programs and activities that receive federal financial assistance.

Sexual and other harassment in a school context should not only be viewed in terms of what is illegal, but also what is appropriate conduct in an educational setting for students, faculty, administrators and others. Whether or not the law is involved, one must also consider that such conduct invites undue hardship for all parties involved, including the person accused and the accuser.

Persons accused of sexual and other harassment could incur individual liability, under other civil and criminal laws, outside of the aforementioned discrimination statues. Sometimes, sexual and other harassment cases involve media coverage which can be embarrassing for students, employees and family members of all related parties. Persons accused of sexual and other harassment could also face expulsion from school, job loss and impaired career advancement.

The laws may cover situations in which students, co-workers, subordinates, vendors and customers have been sexually harassed. If a manager or supervisor knows of such conduct and fails to take action, that manager could be responsible for tolerating a hostile work environment.

II. Types of Sexual Harassment

A. Quid Pro Quo

B. Hostile Work Environment

C. Third Party Sexual Harassment

III. General standard established in New Jersey for Proving Sexual Harassment under the Law Against Discrimination and Title VII in Employment Context Which May Be Used By Analogy in Education Context.

The Supreme Court of New Jersey, under New Jersey’s Law Against Discrimination, has clarified that there are several criteria in proving whether sexual harassment can be established and this has been set forth in a case involving employment. Lehmann v. Toys ‘R’ Us, 132 N.J. 587, 603-604 (1993). The Court specifically held that a plaintiff in a sexual harassment action must demonstrate that the “complained of conduct (1) would not have occurred but for the employee’s gender; and it was (2) severe or pervasive enough to make a (3) reasonable woman believe that (4) the conditions of employment are altered and the working environment is hostile or abusive.” An employer may be strictly liable for equitable damages (e.g., backpay, promotions, reinstatement) for sexual harassment committed by a supervisor. Agency principles apply to determine whether an employer may be responsible for compensatory damages (e.g., damages for emotional distress).

When a supervisor has subjected an employee to sexual harassment, Defendants are strictly liable for equitable relief. Id. At 626. Defendants are liable for compensatory damages based upon agency principles under 219(1) of the Restatement (Second) of Agency. Ibid.

The Court declined that “under 219(1) and employer whose supervisory employee is acting within the scope of his or her employment will be liable for the supervisor’s conduct in creating a hostile work environment. Moreover, even in the more common situation in which the supervisor is acting outside the scope of his or her employment, the employer will be liable in most cases for the supervisor’s behavior under the exceptions set forth in § 219(2).” Id. At 619-620. These sections establish agency liability as follows:

(1) A master is subject to liability for those torts of his servants committed while acting in the scope of their employment.

(2) A master is not subject to liability for the torts of his servants acting outside the scope of their employment, unless:

(a) the master intended the conduct or the consequences, or

(b) the master was negligent or reckless, or

(c) the conduct violated a non-delegable duty of the master, or

(d) the servant purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation.

Id. Thus, the principles set forth in the Restatement explicitly provide that an employer may be held liable for a supervisor’s conduct in creating a hostile work environment when acting either within or outside the scope of his or her employment.

Sexual harassment need not be sexual in nature. Lehmann, supra, at 602; Muench v. Township of Haddon, 255 N.J. Super. 288 (App. Div. 1992). Rather, “the defining characteristic is that the harassment occurs because of the victim’s sex.” Ibid. In other words, the harassment would not have occurred “but for the employee’s gender.” Erickson v. Marsh & McLennan Co., 117 N.J. 539 (1990)

EEOC Guidelines specifically provide that harassment constitutes “verbal or physical conduct that denigrates or shows hostility or aversion toward an individual because of [the employee’s protected class,]” “has the purpose or effect of creating an intimidating, hostile, or offensive work environment,” “has the purpose or effect of unreasonably interfering with an individual’s work performance,” includes “[e]pithets, slurs, negative stereotyping, or threatening, intimidating or hostile acts, that relate to…disability” and [w]ritten or graphic material that denigrates or shows hostility or aversion toward an individual or group because of [the employee’s protected class] and that is placed on walls, bulletin boards, or elsewhere in the employer’s premises or circulated in the workplace.” 29 C.F.R. § 1609.1(b).

It is well-settled that in order for a plaintiff to succeed in proving a hostile work environment, he or she must present a full and complete depiction of the work environment which, when viewed as a whole, presents an image that is intimidating and hostile. Ibid. As a result, both State and Federal Courts recognize that “testimony by employees about discriminatory actions by the defendant-employer similar to those alleged by the plaintiff [are] admissible to prove the employer’s motive or intent to discriminate.” Rendine v. Pantzer, 141 N.J. 292, 309 (1995).

Moreover, an employer may be liable if its investigation into a hostile work environment claim, or any discrimination claim for that matter, is ineffective. Payton v. New Jersey Turnpike Authority, 148 N.J. 524 (1997). In such case, a plaintiff may discover information relating to an employer’s investigation into such claims, even if conducted by an attorney, and the information is likely not protected by the work product doctrine or the attorney client privilege. Ibid.

Last year, the United States Supreme Court decided two cases under Title VII involving claims of unlawful sexual harassment which created a hostile work environment. In the first, Burlington Industries, Inc. v. Ellerth, –U.S.–, 118 S. Ct. 2257, 141 L.Ed.2d 633 (1998), the Court held that an employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. 118 S. Ct. at 2270. In such circumstances, the employer is strictly liable for tangible job consequences resulting from the supervisor’s actions. 118 S. Ct. at 2269.

In a companion case decided the same day, Faragher v. City of Boca Raton, –U.S.–, 118 S. Ct. 2275, 141 L.Ed.2d 662 (1998), the Court held, however, that when no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence, comprised of two necessary elements: (1) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (2) that the plaintiff employee unreasonable failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. 118 S. Ct. at 2293.

Davis v. Monroe County Bd. Of Educ., 526 U.S. 629 (1999) (private damages action may be available against a school board in cases of deliberate indifference to known student-on-student sexual harassment under Title IX).